European Union: Brexit - Business As Usual In Family Law?

One might be forgiven for thinking it odd if this
post-referendum newsletter were to make no mention of the UK's
decision to leave the European Union (EU). There have been numerous
articles published since the Brexit result, which have endeavoured
to identify its immediate effect and to predict its future impact
in the family law arena. Having considered and debated the issue,
we would merely say that pending further developments, it is, for
now, business as usual.

It is correct that upon Brexit and the date of withdrawal, in the
absence of any EU agreement, the UK will no longer be bound by its
obligation to implement EU legislation. This of course includes
numerous valuable EU regulations, directives, decisions and
international treaties. We shall need to fill the legal holes and
adopt new national laws.

Although the component countries of the UK (England and Wales,
Scotland, Northern Ireland) have distinct matrimonial legislation
(particularly as regards the divorce process and financial claims),
the application of EU rules and regulations on jurisdiction and
children matters are fairly uniform across the three UK
jurisdictions.

In the case of divorce, for spouses with EU connections this will
mean looking at jurisdictional criteria and a potential return to
the more contentious 'forum conveniens' basis of
jurisdiction as opposed to the 'first in time' rule under
Brussels IIa. In relation to international cases involving
children, it will be vitally important for the UK to introduce laws
designed to replicate the useful enforcement provisions currently
available across the EU for cross-border families: enforcement of
custody orders, parental responsibility orders, contact orders and
maintenance orders. Clarity and legal restoration must be swift in
the post-Brexit era to ensure that the needs and rights of
international families continue to benefit from the advances and
reforms made over the past few decades.

For those planning pre- or post-nuptial agreements in contemplation
of the financial consequences flowing from divorce (whether living
in the UK or overseas), it would be prudent to give careful
consideration to the jurisdiction and applicable law clauses, and
also reassess asset values for the purposes of disclosure and
proposed financial provision.

We know that the process of withdrawal of the UK from the EU will
take a number of years. However, perhaps we are a little closer to
understanding the potential timescale and the mechanics of
withdrawal from the EU following the recent announcement by Prime
Minister Theresa May at the Conservative Party Conference this
October. She has said that the UK Government plans to trigger the
Article 50 withdrawal process by the end of March 2017 and to
introduce later in the year 2017 a 'Great Repeal Bill'
(which would repeal the European Communities Act 1972). The 1972
Act currently gives effect to EU law and priority over UK law,
including over Acts of Parliament. The PM has proposed that this
Bill should be passed before Brexit, but should not take effect
until after Brexit. The intention is for the vast majority of EU
law to be transformed (by the Bill) from EU law into UK domestic
law, and be effective on Brexit Day. This large mass of newly
domestic legislation would then be examined to determine which
elements should be retained, which disregarded and which
amended.

In many ways, this is good news, because it suggests that many of
the valuable EU regulations, directives and decisions referred to
above, are to be retained and rebranded under UK domestic law.
However, the scale of the task is immense – there will be a
mountain of legal instruments all requiring Parliamentary scrutiny
– and priority is likely be given to commercial and
employment laws, rather than the family law ones. Another concern
is that any wholesale adoption of current EU law would quickly
become outdated - Brussels II Recast (the successor to Brussels
IIa) is already on the horizon. It would be odd, to say the least,
for the UK to implement EU Rules which would shortly become
outdated. Perhaps more troubling, is the prospect of the UK
implementing EU law through domestic legislation, (for example, the
'first in time rule' under Brussels IIA) only for EU
countries to ignore them, since, in the absence of new
treaties/agreements, EU countries would not be bound by UK laws.

At the time of going to print, we await a ruling from the UK
Supreme Court on the question of whether the Government has the
power to trigger Article 50 without parliamentary authorisation. If
the Court rules that Parliament must be involved in the process,
then the PM will need to revisit this new timetable.

So it remains the case that, until the mechanics by which the exit
will take place have been fully established, the immediate and
direct legal implications of the vote to leave are difficult to
predict. For now, the interpretation and application of EU law
remains (temporarily, at least) untouched. The destiny of family
law in England after Brexit seems perhaps a little clearer, but
either way, little is going to change over-night.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

It is estimated that approximately 40% of people over 18 die without making a Will. To try and address this alarming statistic the Law Commission has this month launched a consultation proposing an overhaul of the current law on Wills.

This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).

Email Address

Company Name

Password

Confirm Password

Position

Mondaq Topics -- Select your Interests

Accounting

Anti-trust

Commercial

Compliance

Consumer

Criminal

Employment

Energy

Environment

Family

Finance

Government

Healthcare

Immigration

Insolvency

Insurance

International

IP

Law Performance

Law Practice

Litigation

Media & IT

Privacy

Real Estate

Strategy

Tax

Technology

Transport

Wealth Mgt

Regions

Africa

Asia

Asia Pacific

Australasia

Canada

Caribbean

Europe

European Union

Latin America

Middle East

U.K.

United States

Worldwide Updates

Check to state you have read and agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you
are granted a non-exclusive, revocable license to access the Website under its
terms and conditions of use. Your use of the Website constitutes your agreement
to the following terms and conditions of use. Mondaq Ltd may terminate your use
of the Website if you are in breach of these terms and conditions or if Mondaq
Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to
read the full text of the content and articles available (the Content). You may
not modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, link, display, or in any way exploit any of the
Content, in whole or in part, except as expressly permitted in these terms &
conditions or with the prior written consent of Mondaq Ltd. You may not use
electronic or other means to extract details or information about Mondaq.com’s
content, users or contributors in order to offer them any services or products
which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the
suitability of the information contained in the documents and related graphics
published on this server for any purpose. All such documents and related
graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or
its respective suppliers hereby disclaim all warranties and conditions with
regard to this information, including all implied warranties and conditions of
merchantability, fitness for a particular purpose, title and non-infringement.
In no event shall Mondaq Ltd and/or its respective suppliers be liable for any
special, indirect or consequential damages or any damages whatsoever resulting
from loss of use, data or profits, whether in an action of contract, negligence
or other tortious action, arising out of or in connection with the use or
performance of information available from this server.

The documents and related graphics published on this server could include
technical inaccuracies or typographical errors. Changes are periodically added
to the information herein. Mondaq Ltd and/or its respective suppliers may make
improvements and/or changes in the product(s) and/or the program(s) described
herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally
identifies you, including what sort of information you are interested in, for
three primary purposes:

To allow you to personalize the Mondaq websites you are visiting.

To enable features such as password reminder, newsletter alerts, email a
colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq (and its affiliate sites) do not sell or provide your details to third
parties other than information providers. The reason we provide our information
providers with this information is so that they can measure the response their
articles are receiving and provide you with information about their products and
services.

If you do not want us to provide your name and email address you may opt out
by clicking here .

If you do not wish to receive any future announcements of products and
services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to
view the free information on the site. We also collect information from our
users at several different points on the websites: this is so that we can
customise the sites according to individual usage, provide 'session-aware'
functionality, and ensure that content is acquired and developed appropriately.
This gives us an overall picture of our user profiles, which in turn shows to
our Editorial Contributors the type of person they are reaching by posting
articles on Mondaq (and its affiliate sites) – meaning more free content for
registered users.

We are only able to provide the material on the Mondaq (and its affiliate
sites) site free to site visitors because we can pass on information about the
pages that users are viewing and the personal information users provide to us
(e.g. email addresses) to reputable contributing firms such as law firms who
author those pages. We do not sell or rent information to anyone else other than
the authors of those pages, who may change from time to time. Should you wish us
not to disclose your details to any of these parties, please tick the box above
or tick the box marked "Opt out of Registration Information Disclosure" on the
Your Profile page. We and our author organisations may only contact you via
email or other means if you allow us to do so. Users can opt out of contact when
they register on the site, or send an email to unsubscribe@mondaq.com with “no
disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate
registration form. This is a personalised service where users choose regions and
topics of interest and we send it only to those users who have requested it.
Users can stop receiving these Alerts by going to the Mondaq News Alerts page
and deselecting all interest areas. In the same way users can amend their
personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an
identifying user number. The cookies do not contain any personal information
about users. We use the cookie so users do not have to log in every time they
use the service and the cookie will automatically expire if you do not visit the
Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to
personalise a user's experience of the site (for example to show information
specific to a user's region). As the Mondaq sites are fully personalised and
cookies are essential to its core technology the site will function
unpredictably with browsers that do not support cookies - or where cookies are
disabled (in these circumstances we advise you to attempt to locate the
information you require elsewhere on the web). However if you are concerned
about the presence of a Mondaq cookie on your machine you can also choose to
expire the cookie immediately (remove it) by selecting the 'Log Off' menu option
as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example,
advertisers). However, we have no access to or control over these cookies and we
are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement,
and gather broad demographic information for aggregate use. IP addresses are not
linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or
its affiliate sites) are not responsible for the privacy practices of such other
sites. We encourage our users to be aware when they leave our site and to read
the privacy statements of these third party sites. This privacy statement
applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or
contests. Participation in these surveys or contests is completely voluntary and
the user therefore has a choice whether or not to disclose any information
requested. Information requested may include contact information (such as name
and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.